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concept and forms of is administrative-legal ways of maintenance of legality in work of municipal bodies

The legality mode in the country is not formed in itself, owing to natural coincidence of circumstances. Creation and maintenance of a mode of legality in the state is a vigorous activity of set of subjects of law which includes a complex of measures and the conditions providing strict and strict observance of the legislation by all subjects of legal relations (the state and local bodies, public associations, the enterprises and establishments, citizens).

Now in the scientific and educational literature there is no uniform point of view of that includes the mechanism of maintenance of legality. In the legal literature the reality of security of legality is traditionally considered as result of influence of guarantees of legality. So, according to A.B.Lisjutkina, as a legality guarantee the system of means and the conditions providing process of realisation of the legislation [53] acts caused by laws of development of a society. A legality guarantee is the system of conditions and the means objectively developed or specially created for an exact embodiment of requirements of the law during a life.

However it is necessary to notice, that there is also other point of view on the mechanism of maintenance of legality. For example, N.V.Vitruk «legality maintenance» and «protection (protection) of legality» divides concepts. In its opinion, legality maintenance concerns positive realisation of standard legal acts, preventive maintenance of possible offences while the guarantee is only a component of the mechanism of maintenance of legality [54]. In turn, protection (protection) of legality is connected with its infringement and the subsequent restoration. Under V.S.Afanaseva's statement, these concepts have other parity. Guarantees are positive actions, and legality maintenance includes also negative influences [55].

In the scientific and educational literature we can meet concepts of a guarantee of legality, protection and legality maintenance - however all of them are reduced to opinion on existence of set of methods and the means which primary goal is creation of a mode of legality both in all country, and in separate municipal union. By means of such methods and means it is possible to warn and correct effectively legality infringements, and if necessary to involve guilty in responsibility.

Despite variety of the points of view on the given question, at level of theory of law traditional it is considered opinion on existence of the general preconditions (conditions) of legality and special organisation-legal or legal means and methods of maintenance of a mode of legality at the state and local level.

So, V.V. Lazarev, E.V.Zheleznjakova, N.M.Chistjakov allocate as the general guarantees of legality economic (financially-material), politiko-ideological and spiritually-cultural [56]. The given guarantees express the internal nature of a society, the natural necessity demanding legislative fastening, and to a greater or lesser extent promote consolidation of legality, representing itself as one of methods of the state influence on behaviour of people. However in most cases these guarantees do not operate automatically, and influence legality observance in certain conditions by means of special means. As the last legal (special) guarantees act.

Allocating the special guarantees, one authors, such as N.I.Matuzov, A.V.Malko, S.A.mosquito and others [57], determine in such quality only legal (legal).

Other authors, such as V.S.Afanasev, A.S.Shaburov, N.M.Chistjakov, along with legal (legal) in the category of the special include also organizational (administrative) guarantees [58]. While M.I.Bajtin includes in number of special guarantees intra-and the interdepartmental control [59].

At relative consolidation of the points of view on the mechanism providing legality, there is big enough number of the researchers allocating only one group of methods and means of maintenance of legality. These scientists, as a rule, prosecuting administrative law subjects, consider ways of maintenance of legality as the active actions directed on revealing of deviations from requirements of the right and acceptance of measures of reaction. To such actions carry supervision and the control [60]. Other authors along with it add kontrolno-supervising activity [61]. The third along with the control, supervision and kontrolno-supervising activity name different ways of maintenance of legality - the appeal [62] or

Monitoring [63]. Set of such actions has received the name

«Is administrative-legal ways of maintenance of legality».

Thus, is administrative-legal ways of maintenance of legality represent set of methods and the means directed on maintenance of legality which purpose is creation and maintenance of a mode of legality at the state and local level. Thus legality guarantees as a whole also are directed on maintenance of a mode of legality. However legality guarantees is a system of conditions and the means objectively developed or specially undertaken for an exact embodiment of requirements of the law during a life, i.e. Legality guarantees include political, economic, social and legal conditions and means of maintenance of legality. While administrative ways of maintenance of legality represent the vigorous activity of special representatives on that of bodies, which competence includes check of actual (real) performance of the requirement of the legislation and acceptance of measures following the results of check (the control or supervision) to all subjects of legal relations including to municipal bodies.

Is administrative-legal ways of maintenance of legality allow to create and support a legality mode at the state and local level. By means of the control and supervision controls create the legal environment allowing all participants of legal relations to realise rights in municipality and the state and to fulfil the duties.

The circle of participants of administrative legal relations is non-uniform, among them there are subjects who possess the special status, are local governments. On the one hand, they are allocated by all signs of bodies of public management, and with another - are means of self-organising of the population and do not enter into system of public authorities. Therefore it is represented expedient to investigate display and essence of is administrative-legal ways of maintenance of legality in activity of local governments.

The most widespread and significant in system it is administrative - legal ways of maintenance of legality the control is. It is carried out by all system of controls in the state which has the difficult structural structure covering all important spheres of a life of a society. Thus it is necessary to consider, that the control system in the state has three levels - federal, regional and local. Last level is rather independent, that, certainly, affects monitoring procedure behind work of municipal bodies.

Now the control can be considered in two aspects: as administrative function and as the activity form on legality maintenance.

As the necessary element of administrative process the control represents activity in which course there is an acceptance and realisation of administrative decisions. Without the control it is impossible to carry out successfully tasks in view, and also to warn potential errors and defects. Speaking about the control as about government function, it is necessary to allocate the information-correcting function of the control allowing it to be by one of means of reception of the objective information on channels of a feedback. Feature of this function that it has general character on the scale of the government, i.e. It is in all branches and spheres of which there is an is executive-distributive activity, moreover, it is inherent in all without an exception to state bodies.

The control as management function allows to watch conformity of activity of objects of the control to the planned plan, ways and plan implementers, and also to raise performing discipline, to prevent undesirable consequences, operatively reacting on the revealed offences. The regular control allows to define, how the executor of the purpose and essence of the administrative (command) decisions finished to it has understood, to reveal readiness and ability of shots to realise these decisions [64].

The control is universal function, applicable to any operated system, including the state and municipal bodies. In activity of local governments the control as function of management carries out the same problems, as in system of public authorities, representing set of measures on supervision and check of process of functioning of the under control subject for the purpose of bar of claim by lapse of time of a deviation from the set parametres.

Considering the control as on legality maintenance, it is possible to establish the activity form, that in the scientific literature the solidary approach to this legal category was generated. The majority of scientists-lawyers notice, that the control is the vigorous activity including supervision, the analysis, intervention in activity, regulation (correcting) and restoration, attraction guilty to responsibility, the analysis of the reasons and the conditions promoting fulfilment of offences [65]. V.M.Manohin and N.M. Konin is allocated in the given activity with three elements [66]:

1) check of actual execution of the law, the standard or individual instruction when all activity of under control bodies and their staff is checked. Feature of the control is that check is spent both from the point of view of expediency, and from a position of legality of actions and decisions of under control subjects;

2) check of means and ways of execution of the law and other legal instruction, the commission, the task etc. Ways and methods with which help will reach result are estimated;

3) an estimation the supervising subject of position following the results of the control (check) and application of measures on elimination of the revealed lacks, attraction guilty to responsibility or encouragement.

Acting as way of maintenance of legality, the control allows to influence actively management by means of obligatory instructions for execution of supervising subjects about ways, terms of liquidation of the revealed infringements of legality, and also elimination of the circumstances promoting fulfilment of given infringements [67].

Let's note a number of characteristic signs for the control, defining its specificity and distinguishing it from other forms of maintenance of legality [68].

One of the lines inherent in the control, relations sopodchinennosti or jurisdiction in which, as a rule, there is a supervising body (official) and the under control subject are.

As prominent feature the object of the control in which quality legality and expediency of action under control is considered acts. Supervising can interfere with administrative (current) activity under control. Laws (normative acts) in most cases give freedom of choice of actions to the subject, thus not defining concrete model of behaviour in each separate case that causes necessity of the control not only from the point of view of legality, but also from a position of expediency of activity of under control (accountable) subjects.

Discriminating line of the control is its imperious character which is shown: in possibility of carrying out of check by control body under the initiative without the consent under control, and it is frequent against its will; available at the supervising right to demand from under control granting of documents and explanations, the report on money resources and material assets and also to instruct in ways and terms of elimination of the revealed lacks of activity of the under control subject, and at supervised - duties to fulfil these requirements.

As way of maintenance of legality it is possible to carry to features of the control and that position, that following the results of the control bodies, its carrying out, can apply a wide spectrum of measures of reaction depending on results of check. It can be as negative measures, i.e. Attraction guilty to responsibility, and encouragement measures. Regenerative and kontrolno-precautionary measures can be applied also.

The signs set forth above it is possible to explain, why the control in the most effective way of maintenance of legality, and also its role and a place in system of functions of the state and local management. The system of local governments is one of difficult structured administrative systems in which there are administrative processes. Effective activity of the given system without the constant internal and external control is inconceivable. The control is in full carried out only in system of local governments, they check legality and efficiency of the decision of questions of local value. The state cannot supervise, as municipal bodies are engaged in realisation of questions of local value as the given bodies are out of system of public authorities, because of it the state cannot interfere in operatively-economic activities and check expediency of work of municipal bodies, and also give obligatory instructions for execution. However along with execution of questions of local value local governments can be allocated with the right to execute the separate (transferred) state powers behind which realisation the state leads the control in full. Therefore definition of the supervising subject and volume of powers will depend directly not from sopodchinennosti as it occurs in system of public authorities, and on group of powers (questions) which will be a control subject.

In system of municipal bodies the same principles and control elements, as in system of public authorities operate. Therefore the control spent by local bodies, within municipal union is carried out in full. However it is necessary for distinguishing from such kind of the control, as public control. Last is carried out not by municipal bodies, and various public structures [69].

Municipal bodies can supervise execution by subordinate local bodies and their officials of questions of local value, legality and expediency of their activity is thus checked. While public authorities can carry out the control in full only behind realisation by local bodies of the separate (delegated) state powers and the allocated financial resources. Thus public authorities can carry out checks of a state of affairs, spend audits, collect the information, the state bodies can give written instructions on elimination of infringements etc.

The state bodies have no right to supervise activity of municipal bodies which is directed on the decision of local questions since. The control of realisation of the given powers is possible only at presence sopodchinennosti, in uniform system, and municipal and state bodies are not uniform system. Considering feature of such constitutional position of local governments, the state uses different ways of maintenance of legality, such as supervision.

It is considered to be, that «the control institute is one of central in administrative law» [70] though there is other, not less important is administrative-legal way of maintenance of legality - supervision.

Various treatments of the given concept are presented in Russian explanatory dictionaries, for example, the concept "supervision" is defined as supervision for the purpose of check [71], and the concept to "supervise" means to look after, observe, look [72]. Thus, supervision consists in regular or constant supervision by special imperious bodies over activity of subjects (persons or the organisations), not being at the given bodies in submission, with a view of detection of deviation from the legislation. Thus, unlike the control, supervising state bodies cannot estimate expediency of work of persons under surveillance of subjects and cannot correct behaviour of persons under surveillance or give them any instructions, cannot interfere with them operatively-economic activities.

Being a method of maintenance of legality, supervision includes two elements:

Check of performance of laws and other legal instructions, and also check of activity of bodies or officials about its conformity to law requirements;

Following the results of supervision the special measures which list is strictly reserved by the law which purpose is restoration of the broken legality [73] are taken.

As characteristic lines of a legal category "supervision" act, first, the vigorous activity of the authorised bodies; secondly, supervision (supervision) only behind legality of activity of collective and individual subjects, and also check of observance and execution of laws by them and the subordinate legislation; thirdly, check of activity of the subjects who are not in submission at supervising body.

Now in the scientific and educational literature various kinds (forms) of supervision are considered some. One lawyers allocate administrative and procurator's supervision [74], other scientists add to these forms judicial supervision [75].

Usually procurator's supervision behind legislation execution can be carried to supervision in its classical (traditional) form. On the basis of item 1 of the Federal act from January, 17th, 1992 № 2202-1

«About Office of Public Prosecutor of the Russian Federation» (in red. From January, 31st, 2017) [76] on Office of Public Prosecutor realisation of supervision of legislation execution by executive federal and regional authorities is assigned (the ministries and departments), legislative (representative) bodies of subjects of Federation, municipal and control bodies, their officials, finds out, how there correspond to the legislation legal acts accepted by them, and also carries out supervision of observance of the rights and freedom of the citizen and the person.

Procurator's supervision has universal character, it covers spheres of public work which are settled by norms of various branches of law: civil, grazhdansko-remedial, criminal, labour and administrative etc. Procurator's supervision is carried out behind execution of the legislation irrespective of grow the rights.

As to judicial supervision in the scientific and educational literature there is no uniform approach to its concept. One scientists notice, that the court carries out the control [77], others say, that it is judicial supervision [78]. It is represented, that court activity at justice realisation should be considered as judicial supervision, since. Legality observance is checked only, is absent sopodchinennost, and the court cannot interfere with economic activities of participants of proceeding.

The judicial authority, being an independent branch of the power, is presented by system of courts of justice. One of the basic functions of court is realisation of justice and supervision of legislation execution by all subjects of legal relations, including local governments. Having considered case, the court decrees, and it is obligatory in territory of the Russian Federation.

Administrative supervision represents supervision (supervision) over performance of laws and subordinate legislation legal acts special representatives administration managerial control bodies in subordinated sphere.

Administrative supervision has similar signs with public prosecutor's and judicial supervision. It is carried out concerning the organisations and the physical persons who are not in a career dependence. At administrative supervision carrying out legality observance is checked only, supervising bodies have no right to interfere with economic and operative activity of checked (persons under surveillance) of subjects. However there are also differences between the given kinds of supervision.

During administrative supervision execution not all volume of the legislation, as is checked at realisation public prosecutor's and judicial supervision, but only special rules (traffic, fire safety, sanitary-and-epidemiologic services etc.) [79].

Administrative supervision is carried out for revealing and suppression of an offence, the prevention and restoration of the established order, and also attraction guilty to responsibility, for the purpose of maintenance of safety of citizens, a society, the state, and also appropriate quality of the goods and services [80]. While a main objective of other kinds of supervision is creation and maintenance of a mode of legality.

Administrative supervision is carried out by specialised enforcement authorities in sphere subordinated to them: services [81], agencies [82], inspections [83] and the Ministry of Internal Affairs of the Russian Federation [84].

Thus it is necessary to notice, that concerning administrative supervision there was also other point of view. V.M.Manohin, N.M. Konin, with S.R.Abdullina as that allocate activity only the Ministry of Internal Affairs and internal armies. They carry activity of other inspections and services to kontrolno-supervising activity. Kontrolno-supervising activity, according to the given scientists, is an activity of the state inspections or services which includes components as the control, and supervision. From supervision kontrolno-supervising activity includes check under control about conformity of its activity to the legislation. From the control the given activity took application of measures of reaction to the revealed offences [85].

We believe, that allocation of kontrolno-supervising activity as independent way of maintenance of legality is debatable. The legislation does not use concept «kontrolno-supervising activity». Standard legal acts often do not do distinctions between supervision and the control, these terms are used as identical, that is independent kinds of activity is not paid attention. What then it is possible to speak about kontrolno-supervising activity? So, for example, federal services should spend only supervision, as Federal service on supervision in sphere of protection of the rights of consumers and well-being of the person [86]. However realisation of the state control and supervision is assigned to Federal service on work and employment [87]. Thus the Federal customs service and Federal service of the state statistics are engaged only in the state control [88]. Some scientists mark this feature of the Russian legislation, saying, that in the legislation differentiation between supervision and the control [89] often does not become.

On analogies to the legislator, a number of scientists in the works terms "control" and "supervision" also use as identical. For example, S.A.Avakjan and G.V.Barabashev carry procurator's supervision to the general control [90]. E.V.Shorina notices, that in system of bodies of the control the special place is occupied with Office of Public Prosecutor [91]. At this A.V.Mickiewicz consolidates terms the control and supervision of observance of laws by uniform concept "supervision" [92]. Provided that kontrolno-supervising activity has consolidated in itself certain elements of supervision and the control, we can carry the given activity to one of control or supervision forms. Therefore we carry different kinds of the control and supervision to is administrative-legal ways of maintenance of legality.

The control and supervision are independent ways of maintenance of legality in activity of all subjects of legal relations. As already it was marked above, the given is administrative-legal ways of maintenance of legality operate in all system (structure) of government, and municipal bodies will not be an exception. However which ways can be involved for an establishment and maintenance of a mode of legality in certain municipal union, depends on the developed situation, the subject and a check subject.

Having analysed activity of competent bodies and the officials providing legality, we can allocate some groups of powers of the given subjects.

The first group are powers on revealing of offences. At control and supervision checking bodies have the right to cause officials for a summer residence of explanations (oral and written) to enquire and receive when due hereunder necessary materials; to visit the organisations, to examine and examination of citizens, the organisations, objects, vehicles at a presentation of the business card [93]; to make withdrawals of things and the subjects forbidden for transportation and storage, to carry out sampling and to spend necessary investigations, tests, examinations, analyses and estimations, and also scientific researches [94]. And it is necessary to consider, that the list of the given measures is practically unlimited and depends only on powers of concrete body or the official. The given actions, as a rule, have universal character, i.e. Are applied to all subjects of legal relations, including to local governments.

The second group are the powers directed on the prevention of offences and minimisation of consequences of wrongful acts, caused by bodies and officials of local government. It is possible to carry measures to the given powers presekatelnogo and preventive character which are directed on bar of claim by lapse of time of infringement of obligatory requirements of the legislation. Checking bodies can forbid operation of dangerous objects [95], lead monitoring under control [96], give obligatory instructions for execution.

The third group of the rights and duties by which checking bodies and officials are allocated, are powers on liquidation of consequences illegal actions. First of all, competent bodies force the guilty person to eliminate consequences of offences in a judicial or voluntary order [97]. Besides, they can independently liquidate negative consequences [98].

The fourth group are powers on attraction guilty to responsibility. Impeachment procedure is settled by the criminal or administrative legislation. As a rule, powers of control bodies are differentiated by the legislation. One bodies and officials prepare business materials, collect proofs, spend interrogations and dredging, constitute reports on administrative violations and direct documents to the authorised officials on consideration [99], others - make guilty persons accountable [100].

The rights and duties of each concrete subject providing legality at municipal level, depend on its powers, functions, the purposes and problems which are put before it, therefore the subject structure of control bodies has essential value. Being based on the given precondition, a number of scientists-administrativistov is considered by administrative ways of maintenance of legality through law-enforcement activity of the authorised bodies and officials [101].

So, according to N.M. The horse-flesh, is administrative-legal ways of maintenance of legality is a special organizational-law-enforcement activity of the state bodies and structural divisions of the given bodies which is directed on maintenance of legality in the state [102]. Thus many scientists include in law-enforcement activity not only activity of power departments, but also vessels, legal professions, a notariate, local governments and citizens [103].

Studying of kinds of is administrative-legal ways of maintenance of legality and activity of the authorised bodies gives the chance to approve, that these ways are one of versions of legal (organisation-legal) guarantees of legality, along with economic, political, social, legal etc. Guarantees of legality and administrative ways of maintenance of legality have one purpose - creation and maintenance of a mode of legality both in all state, and in separate municipal union. However legality guarantees is a system of conditions and the means objectively developed or specially created for formation of a mode of legality while administrative ways of maintenance of legality represent the vigorous activity of the authorised bodies. Proceeding from it, we can tell, that administrative ways of maintenance of legality are the vigorous activity of the authorised bodies, which directed on creation and maintenance of a mode of legality in the state and municipality which the control and supervision concerns.

The authorised bodies have a wide arsenal of methods and means for creation and legality maintenance. These methods and means are directed on check of actual performance of requirements of the legislation (revealing of offences), and also acceptance of measures following the results of check (attraction guilty to responsibility, the prevention and liquidation of consequences of illegal activity).

Taking into account the given circumstances it is possible to draw a conclusion, that administrativnopravovye ways of maintenance of legality is the vigorous activity of the authorised bodies regulated by legal acts on creation and maintenance of a mode of legality at the state and local level. Check of actual execution of the requirement of the legislation concerns the competence of the given bodies (laws and the subordinate legislation) and acceptance of administrative actions following the results of check. We can carry the control and supervision to is administrative-legal ways of maintenance of legality.

Thus, is administrative-legal ways of maintenance of legality are applied to all subjects of legal relations, but thus it is necessary to consider characteristic lines of the concrete subject, especially if it is a question of municipal bodies. At the analysis of powers (the rights and duties) bodies and the officials providing legality in activity of local bodies, it is necessary to consider, that municipal bodies are out of system (structure) of public authorities, because of it the control can be carried out only behind the transferred state powers or behind an expenditure of the money resources received from the federal or regional budget. In all other cases supervision can be carried out.

The monitoring procedure and supervision main objective consists in creation and maintenance of a mode of legality. The municipal legislation having local character, leaves the mark on is administrative-legal ways of maintenance of legality, therefore the bodies which are carrying out check, are guided not only federal, regional, but also local legal acts, checking, how much activity of local governments corresponds to the legal acts operating in certain municipal union.

Consideration of components of the control and supervision, and also powers of bodies, their carrying out, allows to come to a following conclusion: is administrative-legal ways of maintenance of legality in activity of municipal bodies is regulated by federal, regional and local legal acts the vigorous activity of the authorised bodies on creation and maintenance of a mode of legality in certain municipal union. The competence of the given bodies includes monitoring procedure and supervision in which course actual performance of requirements of the legislation is checked and measures following the results of check are taken. The control and supervision concern the given methods.

1.3.

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A source: Arzhanov Vladimir Vladimirovich. is administrative-LEGAL WAYS of MAINTENANCE of LEGALITY In ACTIVITY of LOCAL GOVERNMENTS. The dissertation on competition of a scientific degree of the master of laws. Saratov.

More on topic concept and forms of is administrative-legal ways of maintenance of legality in work of municipal bodies:

  1. the Chapter I. Essence of is administrative-legal ways of maintenance of legality in activity of local governments
  2. the Administrative control of legality of municipal standard legal acts.
  3. of Power of federal public authorities on maintenance of legality in activity of municipal bodies
  4. Arzhanov Vladimir Vladimirovich. is administrative-LEGAL WAYS of MAINTENANCE of LEGALITY In ACTIVITY of LOCAL GOVERNMENTS. The dissertation on competition of a scientific degree of the master of laws. Saratov,
  5. Concept, the maintenance and kinds of measures of the administrative compulsion applied to legal bodies in sphere of licensing
  6. powers of local governments on legality maintenance in municipal union
  7. influence of material, financial and personnel maintenance of bodies and establishments of Office of Public Prosecutor on legality maintenance
  8. 1.2. Theoretical problems of maintenance of legality in administrative activity of police
  9. Agarkov Konstantin Nikolaevich. LEGAL FORMS of MAINTENANCE of LEGALITY In LAW-MAKING of SUBJECTS of the RUSSIAN FEDERATION. The dissertation on competition of a scientific degree of the master of laws. An eagle 2004, 2004
  10. § 3. Legality maintenance at a choice of a kind and the size of administrative punishment as a way of protection of the rights of citizens
  11. powers of public authorities of subjects of the Russian Federation on legality maintenance in activity of bodies and officials of local government